Bronx War Veteran Says Verizon Fired Him to Avoid Dealing With PTSD: Suit

July 21, 2015 by Eddie Small

A war veteran fired from Verizon after losing his temper at work claims that the phone company used the argument as an excuse because they were tired of dealing with his PTSD, according to a lawsuit recently filed in Bronx Supreme Court.

Verizon fired Miguel Roche, 48, on Oct. 9, 2014, a few weeks after he told a coworker during a meeting at their Dyre Avenue office that he would “kick his ass,” according to Roche and court papers.

Although Roche, of Wingdale, NY, who began working there in 1996, said the coworker had been antagonizing him and making his job difficult, he acknowledged that he had acted poorly at the meeting and expressed regret for how he handled himself.

“I said things that I shouldn’t have, things that weren’t professional,” he said.

However, Roche and his lawyer Kelly Magnuson both maintain that the fight was not the real reason he was fired. Rather, it was just an excuse to let him go and no longer have to worry about the difficulties caused by his PTSD.

“This claim that they’ve terminated him because of an argument with a coworker is just a farce to get rid of him, which they wanted to do,” Magnuson said.

Roche enlisted in the Marines Corps in 1986 and served in Operation Desert Storm from September 1990 to March 1991, according to the USMC. He was on reserve duty from 1994 to 1998 and from 2001 to 2011, and he was deployed in Iraq from June 2005 to February 2006, according to the Marines.

He received several awards for his service, including a Bronze Star and a Humanitarian Service Medal, but he had a difficult time readjusting to civilian life after returning from combat for the second time.

“He began to experience significant flashbacks, depression, isolation, anxiety, [and] anger related to his military service in 2005-2006,” his lawyer charged in court papers.

Roche was diagnosed with severe PTSD in 2008, according to the July 2 lawsuit, but he said he did not start seriously feeling the effects of the disorder at Verizon until a 2011 workers strike.

“During that strike, as management, I was working,” he said. “We were doing the technicians’ work in the field, and we were subject to constant harassment…”

Memories of being on patrol started coming back to him, as Roche felt that he had to constantly be on high alert, and he went out sick because of his PTSD issues for the first time that September, he said.

Roche had to take time off because of his PTSD in 2013 and 2014 as well, according to the lawsuit. He described his 2013 bout with the condition as particularly severe and a “really, really dark time” in his life.

“I did spend three days in the hospital,” he said. “I did have a suicide attempt. It wasn’t a good time.”

After his 2014 battle with PTSD, he returned to work with medical permission on June 16, the lawsuit says.

However, he soon found that Verizon did not seem very eager to have him come back.

His supervisor Daniel Olivette refused to let him go back to his regular duties as a manager, saying that his struggles with PTSD had created an administrative nightmare for the company, according to the lawsuit.

Instead, Olivette had him do clerical work, but the company never clearly defined what these responsibilities were supposed to entail, according to Magnuson.

“They put him inside and would not give him a team to work with and put him on clerical duties,” she said, “but they hadn’t even determined what they were, which is why there was a lot of friction.”

“He had me doing busy work,” Roche said.

The suit also claims that Olivette did not take Roche’s issues with PTSD very seriously, calling out “Don’t slit your wrists” while Roche was on his way to a doctor’s appointment last summer.

“I have scars on my arm, and they’re visible,” Roche said. “It’s not anything that I can hide when I’m wearing a short sleeve shirt.”

Magnuson said Roche’s firing amounted to disability discrimination and characterized the disagreement he had with his coworker as fairly typical for managers.

“It isn’t uncommon for people in management positions to have arguments you know?” she said. “This isn’t a group of priests. This is a group of people managing a significant number of people on long schedules, and people have debates.”

Olivette could not be reached for comment.

Verizon spokesman Raymond McConville said he could not comment on the specifics of a pending lawsuit, but maintained that the company has a zero tolerance policy for any type of discrimination.

He also described Verizon as one of the country’s top employers of veterans. Military Times named them as the best company for vets to work for in 2015, noting that they employ almost 13,000 of them.

“Our track record of being a great place to work for military service members and veterans speaks for itself,” McConville said in an email.

Senate Passes Bill For State Contract Set-Aside For Disabled Veterans

The New York State Senate today passed legislation (S6865), sponsored by Senator Greg Ball (R, C, I – Patterson), Chairman of the Senate Veterans, Homeland Security and Military Affairs Committee, to facilitate the awarding of state contracts to disabled veterans.

The bill will create a six percent state contract set-aside for service-connected disabled- veteran owned small businesses. The “Service-Disabled Veteran-Owned Business Act” will ensure New York State’s service-connected disabled veterans are better able to compete for millions of dollars in state contracts.

The set-aside is very similar to the highly successful three percent preference that the federal government offers. A three-way agreement on the bill was announced during the Governor’s Veterans and Military Families Summit held last week in Albany.

“New Yorkers can stand tall and proud today knowing that we have kept America’s promise to our veterans and service-disabled heroes. This landmark legislation will create tens of thousands of jobs for veterans statewide and will allow service-disabled veteran small business owners to tap into hundreds of millions of dollars in state contracting,” said Senator Greg Ball. “This single act will do more to reverse the high veteran unemployment rate than anything else we have done, or will do. Yet beyond just creating jobs, this is about saving lives, and confronting the epidemic of veteran suicide through meaningful employment. We have been fighting to establish this set-aside for years and I want to sincerely thank Governor Cuomo for giving us the backing we desperately needed at a critical time. Governor Cuomo is to be applauded for keeping his commitment to our heroes.”

“Let it be clear that this is not a handout, this is an opportunity for both employee and employer,” Senator Ball said. “These men and women have the exact skill sets we need in the workplace and the integrity we desperately need in the board room. The same attributes that make these people so vital to defending our freedoms are the same hard-earned intangibles that make them exceptional at running their businesses and creating jobs. This is what good people can accomplish when they forget the politics and just focus on doing the right thing. Bravo to all involved, bravo!”

State Senate Co-Leader Dean G. Skelos said, “The contributions and sacrifices made by New York’s active duty military veterans and their families are an inspiration to us all. The bill demonstrates our commitment to building on our efforts to ensure that veterans receive the benefits, support and economic opportunities they deserve. I applaud Senator Ball for his efforts on this issue.”

According to the United States Department of Veterans Affairs, New York State is home to nearly 900,000 veterans, 600,000 of whom have served during periods of conflict. According to Governor Andrew Cuomo, there are roughly 106,000 service-connected disabled veterans in New York State.

Eugene Parrotta, Chairman of Senator Greg Ball’s Veterans Advisory Council and two- time Purple Heart recipient, said: “As the director of veterans affairs for the 40th Senate District, under Senator Greg Ball, I am proud to announce that this legislation has finally been approved. It was a long time in coming, but with a forceful array of supporters on both sides it is now on its way to becoming law. It has been my experience in dealing with disabled veterans that there was a feeling of disbelief that New York State did not have this law on the books already. As the state with the most military, most wounded and the most killed in action since this country was founded, a great wrong has been righted. I would like to extend a very heartfelt thank you to Governor Cuomo and all the elected officials, especially Senator Ball, for all the hard work.”

Service-connected disabled veterans from Drexel Hamilton, LLC, also joined the efforts in passing this legislation. Drexel Hamilton is a full-service institutional broker-dealer founded on the principle of offering meaningful employment opportunities to disabled veterans desiring a career in financial services.

James Cahill, president of Drexel Hamilton LLC, said: “New York’s veteran-owned businesses will get the opportunities they deserve to compete and grow, thanks to the leadership of Governor Cuomo, Senator Ball, Assemblyman Ortiz and other leaders in Albany who championed this cause. When veteran-owned businesses thrive, it means more veterans have access to meaningful careers that allow them to demonstrate their full capabilities, and it means their families have the chance to share in the American dream. It’s another reason why New York State is a great place to start a business. Drexel Hamilton thanks all of those in Albany for their work in this critical effort for New York’s veterans.”

U.S. Representative Sean Patrick Maloney recently teamed up with Senator Ball to host a “NY Jobs For Heroes Roundtable” at the Carmel Town Hall to call for the legislation. “After our brave men and women have dedicated their lives in service to our country, more than three million veterans have come home to start small businesses. We must do all that we can to support our heroes, and I commend Governor Cuomo and Senator Ball for working together on this historic agreement to ensure our veteran-owned businesses have access to billions of dollars in state contracts. With post 9-11 veterans facing a staggering 9.2 percent unemployment rate nationwide, it’s our duty to help highly skilled veterans start small businesses and gain meaningful employment upon their return to civilian life,” said Representative Sean Patrick Maloney.

Also participating in the “NY Jobs For Heroes” roundtable, as well as Senator Greg Ball’s lobby day in Albany to push for this legislation, was former CEO of HBO and Yorktown resident, Bill Nelson, who said: “Passing the NY Jobs For Heroes legislation sends the strong message that Governor Cuomo and the NYS Senate and Assembly support our service-disabled veterans and recognize the sacrifice they and their families have made. This legislation has always been about giving the opportunity to our disabled veteran small business owners to provide for themselves, and now they can do just that. I especially commend Senator Ball and his colleagues who have fought for this legislation since 2007 and for the Governor’s leadership in bringing this to fruition.”

Tully Rinckey PLLC Managing Partner Greg T. Rinckey, Esq. said: “Passage of this legislation will change the game for Tully Rinckey PLLC, and service-disabled veteran-owned small businesses like us across New York. Opening the door to veterans will begin to chip away at the chronically high unemployment rate for New Yorkers who served, and at the same time encourage investment in a small business community that sorely needs it. It’s a win-win. I applaud Senator Ball, and the rest of the Legislature, for making New York a leader in helping veterans, as well as small businesses.”

Albany, N.Y. – 03/24/2014 – The New York State Senate today passed legislation (S6865), sponsored by Senator Greg Ball (R, C, I – Patterson), Chairman of the Senate Veterans, Homeland Security and Military Affairs Committee, to facilitate the awarding of state contracts to disabled veterans.

The bill will create a six percent state contract set-aside for service-connected disabled- veteran owned small businesses. The “Service-Disabled Veteran-Owned Business Act” will ensure New York State’s service-connected disabled veterans are better able to compete for millions of dollars in state contracts.

The set-aside is very similar to the highly successful three percent preference that the federal government offers. A three-way agreement on the bill was announced during the Governor’s Veterans and Military Families Summit held last week in Albany.

“New Yorkers can stand tall and proud today knowing that we have kept America’s promise to our veterans and service-disabled heroes. This landmark legislation will create tens of thousands of jobs for veterans statewide and will allow service-disabled veteran small business owners to tap into hundreds of millions of dollars in state contracting,” said Senator Greg Ball. “This single act will do more to reverse the high veteran unemployment rate than anything else we have done, or will do. Yet beyond just creating jobs, this is about saving lives, and confronting the epidemic of veteran suicide through meaningful employment. We have been fighting to establish this set-aside for years and I want to sincerely thank Governor Cuomo for giving us the backing we desperately needed at a critical time. Governor Cuomo is to be applauded for keeping his commitment to our heroes.”

“Let it be clear that this is not a handout, this is an opportunity for both employee and employer,” Senator Ball said. “These men and women have the exact skill sets we need in the workplace and the integrity we desperately need in the board room. The same attributes that make these people so vital to defending our freedoms are the same hard-earned intangibles that make them exceptional at running their businesses and creating jobs. This is what good people can accomplish when they forget the politics and just focus on doing the right thing. Bravo to all involved, bravo!”

State Senate Co-Leader Dean G. Skelos said, “The contributions and sacrifices made by New York’s active duty military veterans and their families are an inspiration to us all. The bill demonstrates our commitment to building on our efforts to ensure that veterans receive the benefits, support and economic opportunities they deserve. I applaud Senator Ball for his efforts on this issue.”

According to the United States Department of Veterans Affairs, New York State is home to nearly 900,000 veterans, 600,000 of whom have served during periods of conflict. According to Governor Andrew Cuomo, there are roughly 106,000 service-connected disabled veterans in New York State.

Eugene Parrotta, Chairman of Senator Greg Ball’s Veterans Advisory Council and two- time Purple Heart recipient, said: “As the director of veterans affairs for the 40th Senate District, under Senator Greg Ball, I am proud to announce that this legislation has finally been approved. It was a long time in coming, but with a forceful array of supporters on both sides it is now on its way to becoming law. It has been my experience in dealing with disabled veterans that there was a feeling of disbelief that New York State did not have this law on the books already. As the state with the most military, most wounded and the most killed in action since this country was founded, a great wrong has been righted. I would like to extend a very heartfelt thank you to Governor Cuomo and all the elected officials, especially Senator Ball, for all the hard work.”

Service-connected disabled veterans from Drexel Hamilton, LLC, also joined the efforts in passing this legislation. Drexel Hamilton is a full-service institutional broker-dealer founded on the principle of offering meaningful employment opportunities to disabled veterans desiring a career in financial services.

James Cahill, president of Drexel Hamilton LLC, said: “New York’s veteran-owned businesses will get the opportunities they deserve to compete and grow, thanks to the leadership of Governor Cuomo, Senator Ball, Assemblyman Ortiz and other leaders in Albany who championed this cause. When veteran-owned businesses thrive, it means more veterans have access to meaningful careers that allow them to demonstrate their full capabilities, and it means their families have the chance to share in the American dream. It’s another reason why New York State is a great place to start a business. Drexel Hamilton thanks all of those in Albany for their work in this critical effort for New York’s veterans.”

U.S. Representative Sean Patrick Maloney recently teamed up with Senator Ball to host a “NY Jobs For Heroes Roundtable” at the Carmel Town Hall to call for the legislation.

“After our brave men and women have dedicated their lives in service to our country, more than three million veterans have come home to start small businesses. We must do all that we can to support our heroes, and I commend Governor Cuomo and Senator Ball for working together on this historic agreement to ensure our veteran-owned businesses have access to billions of dollars in state contracts. With post 9-11 veterans facing a staggering 9.2 percent unemployment rate nationwide, it’s our duty to help highly skilled veterans start small businesses and gain meaningful employment upon their return to civilian life,” said Representative Sean Patrick Maloney.

Also participating in the “NY Jobs For Heroes” roundtable, as well as Senator Greg Ball’s lobby day in Albany to push for this legislation, was former CEO of HBO and Yorktown resident, Bill Nelson, who said: “Passing the NY Jobs For Heroes legislation sends the strong message that Governor Cuomo and the NYS Senate and Assembly support our service-disabled veterans and recognize the sacrifice they and their families have made. This legislation has always been about giving the opportunity to our disabled veteran small business owners to provide for themselves, and now they can do just that. I especially commend Senator Ball and his colleagues who have fought for this legislation since 2007 and for the Governor’s leadership in bringing this to fruition.”

Tully Rinckey PLLC Managing Partner Greg T. Rinckey, Esq. said: “Passage of this legislation will change the game for Tully Rinckey PLLC, and service-disabled veteran-owned small businesses like us across New York. Opening the door to veterans will begin to chip away at the chronically high unemployment rate for New Yorkers who served, and at the same time encourage investment in a small business community that sorely needs it. It’s a win-win. I applaud Senator Ball, and the rest of the Legislature, for making New York a leader in helping veterans, as well as small businesses.”

R. Chance Mims, Chairman and CEO, Academy Securities, Inc. said: “Academy Securities is pleased that Governor Cuomo and State Legislative Leaders have worked together on such an important issue and announced an agreement for a 6% set-aside for disabled veteran owned firms in the State of New York. This legislation will put New York State at the forefront of veteran employment initiatives and will greatly support efforts to hire and train veterans for meaningful post service careers. Academy Securities applauds the state’s leadership and vision in supporting our military heroes.”

Ned D. Foote, President, Vietnam Veterans of America New York State Council, said: “On behalf of the more than 300,000 Vietnam and Vietnam-era veterans, the largest single block of veterans in New York State’s population of almost one million veterans, the Vietnam Veterans of America New York State Council applauds Senator Greg Ball’s efforts to pass this much-needed legislation in recognition of those who have served our great state and country.”

]]>http://www.tullylegal.com/albany-ny/press-releases/tully-rinckey-pllc-works-with-sen-greg-ball-to-pass-critical-sdvosb-legislation/feed/0Tully Rinckey PLLC attorneys Nicole Smith and Graig Zappia discuss a lawsuit filed by a family of a Navy Yard victim with Brendan McGarry of Military.comhttp://www.tullylegal.com/albany-ny/articles/nicole-smith-and-graig-zappia-discuss-lawsuit-filed-by-family-of-navy-yard-victim/
http://www.tullylegal.com/albany-ny/articles/nicole-smith-and-graig-zappia-discuss-lawsuit-filed-by-family-of-navy-yard-victim/#commentsMon, 24 Mar 2014 13:40:37 +0000Tully Rinckey PLLChttp://www.tullylegal.com/albany-ny/?p=19974Family of Navy Yard Victim Plan to Re-file Lawsuit An attorney representing the family of one of the victims of the Washington Navy Yard shooting said he plans to refile a lawsuit arguing the U.S. military and contractors committed “gross …

Family of Navy Yard Victim Plan to Re-file Lawsuit

An attorney representing the family of one of the victims of the Washington Navy Yard shooting said he plans to refile a lawsuit arguing the U.S. military and contractors committed “gross negligence.”

The complaint seeking $37.5 million for the estate of Mary Frances DeLorenzo Knight is expected to be filed on April 10 in either state or federal court in Tampa, according to Sidney Matthew, the attorney representing her surviving family members.

Knight, a 51-year-old Navy civilian and educator, was among the 12 people gunned down in the Sept. 16 shooting at the Washington Navy Yard in one of the deadliest mass shootings on a U.S. military facility in history. The gunman, Aaron Alexis, a Navy reservist who was killed by police, had a security clearance to access the complex despite a history of mental illness and brushes with the law.

“Neither the government contractors nor the Navy followed the existing rules,” Matthew said. “That is gross negligence.”

His comments came the same week the Defense Department released multiple investigations that concluded the incident could have been prevented. The reviews revealed “troubling gaps” in the military’s security clearance system and installation management practices, Defense Secretary Chuck Hagel said in announcing recommendations for improvement.

A little more than a month before the shooting, on Aug. 7, Alexis complained to a police officer in Newport, R.I., of “being followed, hearing voices, and of being under attack by vibrations and microwaves,” according to the Pentagon’s internal review.

The information was shared with naval police and with supervisors at his employer, The Experts Inc., a subcontractor to Hewlett-Packard Co. on a Navy information-technology contract, but neither forwarded it to Pentagon officials who oversee the security clearance system.

“Had this information been reported, properly adjudicated, and acted upon, Alexis’ authorization to access secure facilities and information would have been revoked,” the Navy’s internal report stated.

When the author of that report, Adm. John Richardson, was asked if the investigations identify particular individuals who were negligent, he said, “the primary responsibility and accountability for this incident rests with Aaron Alexis, who used his access to get inside the defenses and do harm to his fellow workers.”

Matthew, the Knight family’s attorney, called that response “pure baloney.”

“It’s not true,” he said. “People should not buy into that.”

Under existing rules, both the Navy and the contractors were required to submit a report about the August incident to the Pentagon’s Joint Personnel Adjudication System, a database used by officials at the Consolidated Adjudications Facility to make determinations on security clearance eligibility, Matthew said.

What’s more, security workers at the Navy Yard, where some 9,000 people work and which was targeted by terrorists in 1983, never patted down Alexis or checked the contents of his bag, either manually or with a metal detector, Matthew said. The security procedure is standard practice across the country at court houses, stadiums, even Smithsonian museums, he said.

“It’s not a system problem,” he said. “It’s a people-being-negligent problem.”

In one of the biggest policy changes, Hagel said the department will begin continuous and automated record checks of personnel with access to defense facilities or information. Until now, it relied on periodic “reinvestigations” in which a previously completed background check was updated every five years for a top secret clearance, 10 years for a secret clearance or 15 years for a confidential clearance.

Hagel also said he will consider recommendations to reduce by 10 percent the number of people who hold security clearances, about 2.5 million individuals; reassess whether it should rely on the Office of Personnel Management to conduct background investigations of its employees and contractors; and do more to de-stigmatize the process for seeking mental health treatment.

Matthew said he initially filed the lawsuit in October under the Federal Tort Claims Act, but he withdrew it after government attorneys asked for the statutory 180-day window before initiating a complaint. He said the updated filing will include information from the government investigations.

Attorneys unaffiliated with the lawsuit said the case is likely to go to trial or be settled.

“There are a lot of good facts on behalf of the plaintiff here, when you look at it just from an evidence standpoint,” Graig Zappia, a partner at the Albany, N.Y.-based law firm Tully Rinckey Pllc, said in a telephone interview. “You have many layers of individuals where liability could be pointed.”

Nicole Smith, an associate attorney at the firm who worked for nearly a decade as a background investigator for a government contractor, said Alexis’ employer should have had a facility security officer who reported his behavior before the shooting. Similarly, his discharge paperwork from the Navy included information that should have been reported, she said.

“Those are two important pieces of information that had they been flagged appropriately, he would have had a clearance pulled,” she said.

The Navy Yard shooting was the second deadliest on a U.S. military base after the 2009 massacre at Fort Hood, Texas. A shotgun-wielding Alexis shot Knight at close range as she walked out of a fourth-floor break room, Matthew said.

Knight, one of the top cyber-security specialists at Naval Sea Systems Command, held two master’s degrees and also taught as an adjunct professor at Northern Virginia Community College, he said.

The lawsuit is being filed in Florida, where her sister, the executor of her estate, lives, Matthew said. Knight had two daughters, one of whom she saw get married just weeks before she died, he said.

]]>http://www.tullylegal.com/albany-ny/articles/nicole-smith-and-graig-zappia-discuss-lawsuit-filed-by-family-of-navy-yard-victim/feed/0Do-over of rape investigation shows complexities of military sexual assault problemhttp://www.tullylegal.com/albany-ny/articles/do-over-of-rape-investigation-shows-complexities-of-military-sexual-assault-problem/
http://www.tullylegal.com/albany-ny/articles/do-over-of-rape-investigation-shows-complexities-of-military-sexual-assault-problem/#commentsFri, 17 Jan 2014 15:29:02 +0000Greg T. Rinckey, Esq.http://www.tullylegal.com/albany-ny/?p=19310By Chris Carroll Stars and Stripes WASHINGTON — A rape case the Air Force is investigating for the second time wraps up many of the complexities faced by a military struggling to deal with sexual assault in a single package, …

WASHINGTON — A rape case the Air Force is investigating for the second time wraps up many of the complexities faced by a military struggling to deal with sexual assault in a single package, military legal experts say.

Command bias against victims, the influence of politics on military justice and the contested — often alcohol-soaked — facts of sex-crime cases are among the knotty issues surrounding an Article 32 investigation that began this week involving Airman First Class Brandon T. Wright. He’s accused of raping a female sergeant in July 2012 when both were stationed at Aviano Air Base, Italy.

Wright faced an Article 32 last year to determine if there was enough evidence to proceed to court martial. But Third Air Force commander Lt. Gen. Craig Franklin elected in August to drop the charges, while refusing the alleged victim’s request to meet with him.

The unusual do-over that began Tuesday at Joint Base Andrews was ordered by top Air Force officials concerned with decision-making by Franklin. The general, who announced he would retire last week, became a lightning rod for criticism of the military’s handling of sex crimes after he overturned the sexual assault conviction of a fighter pilot last February.

His decision was a key rallying point for legislators, victim’s advocates and others who want to change the Uniform Code of Military Justice to strip military commanders of control over prosecutions. The Pentagon and the service branches, however, have argued such a move would hurt military order and discipline.

Outside the hearing this week, the accuser’s special victims counsel — an Air Force attorney who works specifically for the victim’s interests, rather than for the prosecution or defense — said the previous Article 32 was biased against the woman, and featured badgering questioning from the investigating officer.

“It was very clear to us where he was going,” said Capt. Maribel Jarzabek, who wrote a 12-page complaint about the hearing that helped spur the new Article 32. The new investigation, expected to conclude in several weeks with a recommendation from the investigating officer, has a very different tenor, she said.

“The process is working,” she said. “Her voice was heard.”

But legal expert Eugene Fidell, who teaches military law at Yale, said the Air Force’s ad hoc response to Franklin’s decision to throw out charges against Wright — regardless of the facts of the case— calls into question whether the system truly works.

“They seem to think they have an excellent system, except when it doesn’t produce the result they want,” said Fidell, who advocates giving authority over prosecutions to independent military legal authorities fully versed in the UCMJ.

Fidell said Air Force brass had legal authority to send Wright to another Article 32, but called the decision “systemically indefensible.”

The current system, he said, “functions in a way that doesn’t foster public confidence. A reasonable, impartial observer doesn’t expect the government to keep coming back until it finds a convening authority that will do its bidding.”

But another military legal expert said the Air Force’s decision was the right one, given the doubts about fairness toward victims that resulted from Franklin’s February 2013 decision reversing the sexual assault conviction of Lt. Col. James Wilkerson.

“I think that what has happened is positive,” said retired Maj. Gen. John Altenburg Jr., a former deputy judge advocate general of the Army who now practices law in Washington. “Apparently the Air Force decided to send it to another convening authority for a look in order to ensure that Gen. Franklin’s decision didn’t color the impression that people — and especially the victim — would have of the process.”

“These kinds of charges are among the most difficult to address, and to determine disposition” because they frequently lack enough evidence or witnesses for a clear-cut prosecution, he said.

Indeed, the hearing that began this week featured the kind of contradictory testimony that a private-practice military defense attorney said makes such cases difficult to resolve.

“Many of these take place in the barracks with people they know, or at a party — they’re making out and there’s alcohol involved,” said Greg Rinckey of the law firm Tully Rinckey. “It’s not always so easy to say where the line is on criminality and where the line is on what is consensual sex. There might be two perspectives — two perceptions of what happened that night.”

According to the female sergeant, whom Stars and Stripes is not identifying because she is the alleged victim of a sexual assault, she gave Wright no encouragement before he pulled her on top of himself, forcing kisses on her and eventually raping her.

But a friend of Wright’s, Sr. Airman Shaun Sosa, who was present during the night of drinking and watching movies when the rape was alleged to have happened, contradicted much of the woman’s testimony. He said the pair had been flirting for hours before cuddling under a blanket.

Sosa said heard from another room of the woman’s apartment what to him sounded like a consensual sexual encounter — giggles followed by moans of pleasure.

Contradictory testimony from an eyewitness — or one in earshot — could be devastating to a prosecution, Fidell said.

“If that evidence is credible, then it should stop moving to prosecution,” he said. But if the investigating officer in the case decides there’s reason to question Sosa’s credibility, he might decide a court-martial panel should decide who’s lying, Fidell said. “Then it’s a horse race. Credibility questions come up all the time — that’s the nature here.”

An advocate for military sexual assault victims said the stop-and-start way the case has played out is damaging to both the female sergeant and to Wright — and is a result of a flawed system that gives commanders with limited legal understanding and potential conflicts of interest control over prosecutions.

“Not every case is going to be under such scrutiny as Aviano,” said Nancy Parrish, president of the organization Protect our Defenders. “The world is not always watching to force military leaders to do right by the victim and the accused.”

]]>Assistant Secretary of the Army Thomas R. Lamont recently ordered an investigation into allegations of document fabrication and systematic problems in the University of Portland Reserve Officers Training Corps program after the military law firm Tully Rinckey PLLC successfully showed the program erroneously disenrolled a cadet. Further, Lamont, the head of Army’s Manpower and Reserve Affairs, declared the cadet does not have to pay $84,288 in unearned education benefits and she will not have to serve on active duty to fulfill her contractual obligations to the military.

Lamont’s decision concludes Sabrina E. Norton’s nearly 18-month legal battle against the University of Portland ROTC, which disenrolled her because she breached her cadet contract through her alleged voluntary withdrawal from the university. However, as Ms. Norton’s attorney, Tully Rinckey PLLC attorney Michael W. Macomber, argued in the cadet’s appeal, her withdrawal was in fact involuntary. Further, ROTC officials failed to follow the program’s policy memorandum and written directions when they initially moved to disenroll Ms. Norton after she failed her Army Physical Fitness Test (APFT) in January 2012. On top of that, Mr. Macomber argued that a falsified document was the only evidence that Ms. Norton had ever been counseled regarding her alleged APFT deficiencies.

“This is a great decision that saves a very bright student from the dark financial outlook of having to repay over $84,000. Hopefully, the investigation will also bring some much-needed accountability to the University of Portland ROTC program,” said Mr. Macomber.

Ms. Norton enrolled in University of Portland ROTC in 2009 with the hopes of studying biochemistry and becoming a pediatrician. Although she excelled academically, she occasionally struggled with the ROTC program’s physical fitness standards. In January 2012, she failed the push-up portion of her APFT by one push-up. The ROTC program’s professor of military science immediately initiated her disenrollment. Having been told she would be disenrolled and be required to repay her tuition – even though she actually had until the end of the semester to pass the APFT – Ms. Norton withdrew from the university rather than stay through the spring semester. Her incorrect assumption about her immediate disenrollment, Mr. Macomber argued, rendered her withdrawal from the university involuntary.

Under ROTC policy, cadets should be placed on administrative suspension or probation before being disenrolled for failing an APFT. Ms. Norton, however, never received such counseling prior to failing her January 2012, even though a Developmental Counseling Form (DA Form 4856) purportedly drafted by a military science advisor the previous September claimed otherwise. Mr. Macomber pointed out several irregularities with this document, revealing it to be invalid.

In his decision on Ms. Norton’s appeal, Mr. Lamont directed the Army Training and Doctrine command’s commanding general to appoint an investigating officer outside the chain of chain of command of the 8th ROTC Brigade “to investigate the allegations of document fabrication and any systematic problems in the University of Portland ROTC program.”

“It is not uncommon for some ROTC programs to play fast and loose with their own policies when it comes to disenrollment and disciplinary proceedings. Cadets facing these proceedings need backup – an attorney – who can ensure program officials play by the rules and make it a fair fight,” said Mr. Macomber.

]]>http://www.tullylegal.com/albany-ny/press-releases/wrongfully-disenrolled-university-of-portland-rotc-cadet-saved-from-84000-scholarship-bill/feed/0“Top of My List” – M.R.http://www.tullylegal.com/albany-ny/testimonials/top-of-my-list-mr/
http://www.tullylegal.com/albany-ny/testimonials/top-of-my-list-mr/#commentsTue, 17 Sep 2013 17:35:44 +0000Tully Rinckey PLLChttp://www.tullylegal.com/albany-ny/?p=19232“I could not be more pleased with their services. Tully Rinckey PLLC and the legal team treated me with respect and professionalism desired in a top caliber attorney. They advocated my case and sought answers from the moment I retained …

]]>“I could not be more pleased with their services. Tully Rinckey PLLC and the legal team treated me with respect and professionalism desired in a top caliber attorney. They advocated my case and sought answers from the moment I retained your firm. They kept me informed every step of the way until they retained a clear and definite outcome in my favor. Tully Rinckey is at the top of my list. Thank you for everything!” - M.R. on Tully Rinckey PLLC

Brig. Gen. Jeffrey Sinclair, soon to face a military trial on forcible sodomy and other misconduct charges, has mounted a double-barrelled counteroffensive more commonplace in high-profile civilian defense than in the military.

In the courtroom, Sinclair’s legal team has filed motions accusing the government of seizing emails on his government computers in violation of his constitutional rights and exerting illegal pressure to prosecute Sinclair. Lawyers representing Sinclair asked a military judge to force prosecutors to turn over any emails related to the case sent or received by former Defense Secretary Leon Panetta.

Outside court, his public relations team has launched a website called sinclairinnocence.com and Twitter account @SinclairFriends that have sought to shift attention from Sinclair onto the prosecution and Sinclair’s main accuser.

In an interview with Army Times, Richard Scheff, the lead defense attorney and a former federal prosecutor, acknowledged Sinclair’s teams have been aggressive.

“It is an aggressive defense, but appropriately so,” said Scheff, a former federal prosecutor in Pennsylvania and chair of the law firm Montgomery McCracken. “We don’t file a motion, we don’t take a position unless we feel factually or legally we ought to win.”

Upon the start of Sinclair’s court-martial July 16 at Fort Bragg, N.C., Scheff intends to further respond to the charges in the case, which include forcible sodomy, indecent acts, violating orders and adultery. (Alcohol and pornography possession charges against him were dropped.)

The case is also noteworthy for the amount of brass it is expected to attract in the jury box. The pool from which the jury will be selected includes generals with one to three stars.

At an evidentiary hearing for Sinclair in November, prosecutors presented testimony about his conduct with five women who were not his wife, including officers who served under his direct command. The charges involve alleged activities when he was in Afghanistan, Iraq, Germany and at installations in the U.S.

Sinclair was deputy commander in charge of logistics and support for the 82nd Airborne Division in Afghanistan before being relieved in May during the criminal investigation. He has been on special assignment since then at Fort Bragg.

The female captain at the heart of the case said she carried on a three-year sexual relationship with Sinclair, a father of two. The admission to adultery, a crime in the military, could end her career. She testified that when she tried to end the relationship, Sinclair threatened her and, on two occasions, physically forced her to perform oral sex.

A 27-year Army veteran, Sinclair faces life in prison if convicted on the most serious offenses. It’s rare for an Army general to face court-martial. There have been two cases in recent years.

Scheff intends to show that Sinclair and his accuser shared a “purely consensual,” though inappropriate, relationship, which ultimately fell apart.

Watershed moment

The defense witness list includes character witnesses and high-ranking generals. Among them, Lt. Gen. James Huggins, Sinclair’s former commander, is expected to testify. Others who may be called to testify include Gen. Dan Allyn, commander of Forces Command; Maj. Gen. Jeffrey Colt, Fort Bragg deputy commander; Lt. Gen. Peter Vangjel, Army inspector general; Lt. Gen. Curtis Scaparrotti, director of the Joint Staff; and Lt. Gen. David Quantock, the provost marshal general.

“Everybody I’ve talked to about this case says they don’t remember any instance where a general officer has been court-martialed in a case like this, under these circumstances,” Scheff said. “It’s a unique set of circumstances.”

In June, the Pentagon published a report showing a rise in known sexual assault cases, and suggesting as many 26,000 military service members faced unwanted sexual contact but might not have reported it.

Meanwhile, the military saw a string of embarrassing cases over the past year, including Air Force commanders who granted clemency to two officers convicted of sexual assault, and Sinclair’s case. Attention and pressure in Congress over whether the military’s handling of sexual assault is effective culminated in the Senate Armed Services Committee rejecting legislation proposed by Sen. Kirsten Gillibrand, D-N.Y., which would have sidelined military commanders in sexual assault cases. The committee approved a plan that subjects commanders to a review process if they choose not to prosecute a sexual assault case.

President Obama’s recent statements on sexual assault in the military have affected other courts-martial, according to published reports. In May, Obama said, “If we find out somebody’s engaging in this, they’ve got to be held accountable — prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged. Period,” he said.

According to published reports, Obama’s statement led a Navy judge to rule that two sailors accused of sexual assault can’t be punitively discharged if found guilty. The decision is now under appeal.

In court, Scheff argued Sinclair would not be able to receive a fair trial. He cited Obama’s comments and the promotion of an Air Force lieutenant general, Susan J. Helms, to four-star general that has been blocked by U.S. Sen. Claire McCaskill, D-Mo., asanother example, the Fayetteville Observer reported. Helms is reportedly under fire for overturning an Air Force officer’s sexual assault conviction, something she was allowed to do under military law after reviewing the evidence against him.

Scheff, in the interview with Army Times, noted that Army Chief of Staff Gen. Ray Odierno said combating sexual assault and harassment within the ranks is the Army’s “No. 1 priority.” The current climate surrounding military sexual assault, Scheff said, is “white hot.”

“Can Gen. Sinclair get a fair trial under these circumstances? Can a panel of general officers fairly decide this case, given that they have been directly told by Gen. Odierno this is the number-one priority in the military and they’re personally accountable for it?” he said.

If the government loses, it might bolster the impression that it cannot effectively prosecute sexual assault cases.

“My personal view, which may or may not be borne out, is the stakes are high for the Army, because no matter what the result is, the Army will look bad in this case,” Scheff said.

The public factor

Greg Rinckey, a military attorney who is not affiliated with the case, said in the charged environment surrounding sexual assaults, it makes sense for Sinclair’s team to reach out to the public.

“Normally, I would say that that is not a very smart move for military justice cases, but in the climate we’re in, it might not be a very bad idea,” Rinckey told Army Times. “You hear that he’s been charged with all of these indecent acts and then what it comes down to is a ‘he said, she said’ case of adultery. And the question becomes whether it was forcible or consensual sodomy.”

Instead of the forcible sodomy allegation, it focuses attention on the lesser crime of adultery and may leave the impression that the case is not so clear-cut. That, in turn, may capitalize on a backlash against the military’s crackdown on sexual assault.

“There’s a lot of people in the military outraged both ways about the sexual assault controversy,” Rinckey said. “There’s a [military sexual assault] problem, but there are people who feel we’re going down the other route of it becoming a witch hunt.”

Both Sinclair’s defense and public relations team have accused prosecutors of accessing “thousands of pages of privileged emails between Sinclair and his defense attorneys; Sinclair and his wife; and Sinclair and his pastor,” according to sinclairinnocence.com.

During the first day of evidentiary hearings, prosecutors admitted to receiving privileged communications but said it was unintentional and that they had avoided viewing them.

Airing the accusation online paints the picture of a legal process that is unfair, Rinckey said, which could work to sway public opinion to Sinclair’s side.